NEALS v. WARREN et al

Filing 35

MEMORANDUM AND ORDER that the Clerk of the Court shall mark this matter as Open so that the Court may consider Petitioner's submissions (ECF Nos. 33 and 34 ). The 34 Motion to Stay is granted and the matter is stayed. The Clerk of the Court shall administratively terminate this case at this time. Within sixty (60) days after Petitioner has exhausted his state court remedies with respect to Ground Five of the Amended Petition, Petitioner shall notify the Court whether he wishes to reopen the case, or to withdraw his Petition. The Clerk shall serve a copy of this Order upon Petitioner by regular mail. Signed by Judge Freda L. Wolfson on 11/16/2017. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TIVON NEALS,

Civil Action No. 13-4398 (FLW)

Petitioner,
v.

MEMORANDUM AND ORDER

CHARLES WARREN, et al.,
Respondent.

This matter having been opened to the Court by Petitioner Tivon Neals’ (“Petitioner”)
filing of an Second Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
(ECF No. 33), and a motion for a stay to exhaust Ground Five of his Second Amended Petition.
(ECF No. 34.). It appearing that:
By Opinion and Order dated February 27, 2017, this Court denied Petitioner’s motion for
discovery but permitted Petitioner to amend his Amended Petition to clarify the Brady claim, 1 as
alleged in Ground Five of his Amended Petition, to include the facts related to the State’s alleged
withholding of a Search Warrant Application. (ECF Nos. 31, 32.) The Court further found that
Petitioner had not exhausted this aspect of his Brady claim, and dismissed the Amended Petition
as mixed and provided Petitioner with 45 days to either (1) submit a Second Amended Petition
(that includes both his exhausted claims and the unexhausted portion of his Brady claim), along
with a motion for a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) or (2) advise the

1

Brady v. Maryland, 373 U.S. 83 (1963).
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Court that he intends to proceed with his original Amended Petition (i.e., ECF No. 7) and
withdraw the unexhausted portion of his Brady claim related to the Search Warrant Application.
(Id.)
Petitioner elected the former and timely submitted his Second Amended Petition and
motion for a stay. (ECF Nos. 33, 34.) The Court has considered Petitioner’s submissions and
will grant his motion for a stay pursuant to Rhines and enter an Order staying the case until the
conclusion of the state court proceedings. Within sixty (60) days after Petitioner has exhausted
his state court remedies (to every level of the state court) with respect to Ground Five of his
Second Amended Petition, Petitioner shall notify the Court as to whether he wishes to reopen the
case, or to withdraw his Petition; Petitioner is hereby given notice that failure to notify the Court
within this time period may result in the dismissal of the Petition.
IT IS, THEREFORE, on this 16th day of November, 2017,
ORDERED that the Clerk of the Court shall mark this matter as OPEN so that the Court
may consider Petitioner’s submissions (ECF Nos. 33, 34); and it is further
ORDERED that the motion to stay (ECF No. 34) this matter is GRANTED, and the
matter is hereby STAYED while Petitioner exhausts his state court remedies with respect to
Ground Five of the Second Amended Petition; it is further
ORDERED that the Clerk of the Court shall ADMINISTRATIVELY TERMINATE
this case at this time; 2 it is further
ORDERED that within sixty (60) days after Petitioner has exhausted his state court
remedies with respect to Ground Five of the Amended Petition, Petitioner shall notify the Court

2

Petitioner is informed that administrative termination is not a “dismissal,” and that the Court
retains jurisdiction over his case. See Papotto v. Hartford Life & Acc. Ins. Co., 731 F.3d 265,
275 (3d Cir. 2013) (distinguishing administrative terminations from dismissals).
2

whether he wishes to reopen the case, or to withdraw his Petition; Petitioner is hereby given
notice that failure to notify the Court within this time period may result in the dismissal of the
Petition; and it is further
ORDERED that the Clerk shall serve a copy of this Order upon Petitioner by regular
mail.

/s/
Freda L. Wolfson
Freda L. Wolfson
United States District Judge

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